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END USER
LICENSE AGREEMENT FOR CDMS LABEL SEARCH USER
TERMS
AND CONDITIONS
This
End User License Agreement (the “Agreement”) constitutes a valid and
binding agreement between crop data management systems, inc. (“CDMS”) and
you (“user”), for the use of CDMS LABEL SEARCH. PLEASE READ VERY CAREFULLY
THESE TERMS AND CONDITIONS BEFORE REGISTERING. Before
User may use CDMS LABEL SEARCH, User must read and accept all of the terms
and conditions in this Agreement. User hereby agrees and acknowledges that
this Agreement covers all User’s use of CDMS LABEL SEARCH. By using CDMS LABEL SEARCH,
User agrees to be bound by the following terms and conditions.
Furthermore,
User’s continued use of CDMS LABEL SEARCH shall be deemed acceptance of
the terms and conditions as posted, including any
revisions.
Electronic
Signatures and Agreement(s):
BY
CLICKING THE ACCEPT BUTTON BELOW, USER ACCEPTS THIS AGREEMENT EITHER FOR
USER OR ON BEHALF OF USER’S EMPLOYER OR OTHER ENTITY AND AGREES TO BE
BOUND BY ITS TERMS AND CONDITIONS. User acknowledges and agrees that by
clicking on the ACCEPT button or similar buttons or links designated by
CDMS to show User’s approval of any foregoing texts to use CDMS LABEL
SEARCH, User is entering into a legally binding contract. If User does not
agree to these terms and conditions, do NOT click on the ACCEPT button.
User hereby agrees to the use of electronic communication in order to
enter into contracts, and to the electronic delivery of notices, policies
and records of transactions initiated or completed through CDMS LABEL
SEARCH. Furthermore, User hereby waives any rights or requirements under
any laws or regulations in any jurisdiction which require an original
(non-electronic) signature or delivery or retention of non-electronic
records, to the extent permitted under applicable mandatory
law.
Jurisdictional
Restrictions:
If User
is residing in a jurisdiction that restricts the use of internet-based
applications according to age, or that restricts the ability to enter into
agreements such as this Agreement according to age and User is under such
a jurisdiction and under such age limit, User may not enter into this
Agreement and use CDMS LABEL SEARCH. Furthermore, if User is residing in a
jurisdiction where it is forbidden by law to offer or use software such as
this, User may not enter into this Agreement and User may not use CDMS
LABEL SEARCH. By entering into this Agreement User explicitly states that
User has verified that the use of CDMS LABEL SEARCH is allowed in User’s
jurisdiction. User may not click on the ACCEPT button if User is not at
least 18 years of age.
ARTICLE
1. DEFINITIONS
In this
Agreement the following capitalized definitions are being used, singular
as well as plural:
1.1 “Agreement”
shall mean this End User License Agreement between User and CDMS, as may
be renewed, modified, and/or amended from time to
time.
1.2 “CDMS”
shall mean
Crop Data Management Systems, Inc., a
California corporation with its
headquarters located at
423 Fourth
Street,
Marysville,
California, and its officers, employees,
agents, subsidiaries, and attorneys.
1.3 “CDMS
Website”
shall refer to the CDMS internet-based collection of web pages,
available—among
other URL’s—under
the URL http://www.cdms.net.
1.4 “Chemical
Information” shall
mean the information made available to and accessible by User through use
of CDMS LABEL SEARCH. Such information typically includes product label
information for crop protection and specialty products, worker protection
and safety information, shipping descriptions, use rates, and crop
rotation and pests controlled information.
1.5 “CDMS
LABEL SEARCH” or “Web Service” shall refer to CDMS’s
proprietary commercially available computer application and searchable
database CDMS LABEL SEARCH.
1.6 “Effective
Date”
shall mean the date on which this Agreement is entered into by clicking on
the ACCEPT button as stated above or the date of the first use of CDMS
LABEL SEARCH in the event that User did not click on the ACCEPT button. In
the event that this agreement is modified, the
Effective Date will be the first date that User first uses CDMS LABEL
SEARCH after the new Agreement terms have been posted on the CDMS
Website.
1.7 “Intellectual
Property” shall refer to the rights of
CDMS to any copyrights, patents, trademarks, trade secrets, right of
publicity and attribution, right of privacy, ideas, or expressions
recognized under any federal state, or foreign law, in CDMS LABEL SEARCH
or any related Web Services, and any source code, object code, designs,
graphics, text, or other constituent parts.
1.8 “Term”
shall
mean one (1) year from the Effective Date of this Agreement, unless it is
terminated prior to that date by either CDMS or User as set forth in
Article 4 below.
1.9 “User”
shall mean the person or entity executing this on-line Agreement, or
on behalf of whom this on-line Agreement is
executed.
1.10 “Web”
shall refer to or pertain to that portion of the Internet commonly
known as the “World Wide Web.”
ARTICLE 2. USE OF CDMS
LABEL SEARCH WEB SERVICE
2.1 Access
to CDMS LABEL SEARCH. As
of the Effective Date, User’s use of CDMS LABEL
SEARCH shall include access to Chemical Information provided by various
manufacturers throughout the
United
States. User shall have access to CDMS
LABEL SEARCH subject to the terms and conditions of this Agreement. At any
time during the Term of this Agreement, CDMS may require access to CDMS
LABEL SEARCH to be preceded by the entry of a password or participation in
some other logon procedure by User, which procedure shall require no
additional charge or fee of User.
2.2 No
Warranties. CDMS makes no promise or
warranty about the continuousness of service. User acknowledges that CDMS
LABEL SEARCH is or may be made accessible through electronic and/or
telecommunication systems, lines, devices, or channels maintained by third
parties, and beyond the control of CDMS, and in the event those systems
are out of order, disconnected, or otherwise interrupted, communication
will not be possible. In the event of any disconnection or interruption,
CDMS will not be liable for such disconnection or interruption, or any
loss or injury to User resulting there from.
ARTICLE 3. FEE AND
TERM
3.1 Fee
for Annual Term. There
is no annual fee for User’s use and access to CDMS
LABEL SEARCH Web Service. Access shall begin after User completes the
registration and CDMS completes the processing of User’s registration
information, pursuant to this Agreement.
3.2 Excise
and Sales Taxes. User shall be solely
responsible for and shall pay any state or local privilege, excise, or
sales taxes levied, imposed on, or pertaining to CDMS LABEL
SEARCH.
3.3 Term.
This agreement will be effective as of the Effective Date and will remain
effective for one (1) year, unless it is terminated prior to that date by
either CDMS or User as set forth in Article 4 below.
3.4 Renewal.
CDMS may but
is not required to renew access to CDMS LABEL SEARCH for additional
one-year terms for an additional fee. CDMS reserves the right to change
the term of the service and the fee for the service at its
discretion.
ARTICLE 4.
TERMINATION
4.1 Termination
by CDMS. CDMS
may terminate this Agreement with immediate effect at any time, with or
without cause and without recourse to courts, by providing notice to User
and/or by preventing User’s access to CDMS LABEL SEARCH. User’s rights
will automatically and immediately terminate without notice from CDMS if
User fails to comply with any provision of this
Agreement.
4.2 Termination
by User. User may terminate this Agreement with immediate effect at any
time, with or without cause and without recourse to the courts, provided
that User shall meet the conditions as set forth in Article 4.3
below.
4.3 Consequences
of Termination. Upon
termination of this Agreement, User (a) acknowledges and agrees that all
licenses and rights to use CDMS LABEL SEARCH shall terminate, and (b) will
cease any and all use of CDMS LABEL SEARCH.
4.4 No
Liability.
CDMS
will not be liable in relation to any damage caused by the termination of
this Agreement.
ARTICLE 5.
INTELLECTUAL PROPERTY RIGHTS AND LICENSE
5.1 Title
and Ownership. Title to all Intellectual
Property rights in CDMS LABEL SEARCH, and the related computer software,
source code, object code, graphics, text, data, training and explanatory
materials, are and shall remain with CDMS. User agrees that CDMS LABEL
SEARCH Web Service is the copyrighted work of CDMS and is protected by
copyright laws. User agrees that CDMS hereby retains all existing
Intellectual Property rights owned prior to the execution of this
Agreement.
5.2 Grant
of Nonexclusive License. CDMS grants to User for the Term of this
Agreement a limited, nonexclusive, non-sublicensable, non-assignable
license to have access to and use CDMS LABEL SEARCH as provided in this
Agreement. This license shall give to User the right for one (1) uniquely
identifiable employee to access and use CDMS LABEL SEARCH in accordance
with this Agreement. A separate license must be purchased for each
employee. This license does not grant to User the right to copy, publish,
download, broadcast, or sell CDMS LABEL SEARCH Web Service for any
purpose. This license will terminate upon the expiration of the Term of
this Agreement.
5.3
No Assignment. User shall not, without prior written consent of CDMS,
sell, assign, delegate, sublicense, pledge, or otherwise transfer this
license, or any of its rights or obligations under this license or this
Agreement, to any party.
ARTICLE 6. CDMS DISCLAIMER OF
WARRANTIES; LIMITATION OF LIABILITY
6.1 No
Warranties. User acknowledges and agrees that CDMS is not the author of
the Chemical Information, that such data is provided to CDMS by various
agricultural chemical manufacturers, and that CDMS has no responsibility
for the accuracy or currency of such Chemical Information. USER EXPRESSLY
UNDERSTANDS AND AGREES THAT USE OF THIS WEBSITE IS AT USER’S SOLE RISK.
CDMS LABEL SEARCH, AND ANY OTHER WEB SERVICES, SOFTWARE, OR RELATED
SERVICES AND PRODUCTS PROVIDED UNDER THIS AGREEMENT ARE PROVIDED "AS IS."
CDMS EXPRESSLY DISCLAIMS ALL WARRANTIES, GUARANTEES, AND CONDITIONS OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF CDMS LABEL
SEARCH AND RELATED COMPUTER SERVICES PROVIDED OR MADE AVAILABLE UNDER THIS
AGREEMENT RESTS SOLELY WITH THE USER. CDMS SPECIFICALLY DOES NOT WARRANT
THAT THE FUNCTIONS CONTAINED IN THE CDMS LABEL SEARCH SERVICE WILL MEET
USER’S REQUIREMENTS OR THAT THE OPERATION OF CDMS LABEL SEARCH AND RELATED
WEB SERVICES AND SOFTWARE WILL BE ACCESSIBLE, UNINTERRUPTED, SECURE, OR
ERROR FREE. CDMS ALSO DOES NOT WARRANT THAT THE DATA OR INFORMATION
PROVIDED TO USER THROUGH CDMS LABEL SEARCH OR ANY RELATED SERVICE IS
ACCURATE OR COMPLETE.
6.2 User’s
Risk. User
acknowledges
and agrees that the entire risk arising out of the use or performance of
CDMS LABEL SEARCH remains with User, to the maximum extent permitted by
law.
6.3 Limitation
of Liability and Damages. CDMS’s liability to User for damages for any
breach of this Agreement or any act or omission arising from or relating
to this Agreement shall be limited to the charges paid by User for CDMS
LABEL SEARCH in the preceding twelve (12) month period. CDMS shall not be
liable for any lost profits, lost savings, or other incidental, special,
exemplary, consequential, or punitive damages arising out of User’s access
to, use, or inability to use CDMS LABEL SEARCH, or of any other services
or software provided under this Agreement, regardless of the type of
claim, whether in contract, tort, negligence, strict liability or other
legal or equitable theory, whether or not foreseeable and regardless of
the cause of such damages even if CDMS was advised of the possibility of
such damages in advance. No action shall be brought by User against CDMS
more than one (1) year after the cause of action has accrued, except that
an action for nonpayment may be brought within one (1) year after the date
of the last payment. The parties recognize and agree that the services to
be provided under this Agreement could not be made available under these
terms or other similar terms without a substantial increase in cost if
CDMS were to assume a greater degree of liability.
6.4 Remedy. User’s
only right or remedy with respect to any problems or dissatisfaction with
CDMS LABEL SEARCH is to cease use of CDMS LABEL
SEARCH.
6.5 Jurisdictional
Limitations. As some jurisdictions do not allow some of the exclusions or
limitations as set forth above, some of these exclusions or limitations
may not apply to User. For these jurisdictions, the aforementioned
limitation on liability shall be to the maximum degree permitted by
applicable law.
ARTICLE 7. USER COVENANTS,
REPRESENTATIONS, AND WARRANTIES
7.1 Representations.
User
represents and warrants that User is authorized to enter into this
Agreement and comply with its terms. Furthermore, User represents and
warrants that User will at any and all times meet with User’s obligations
hereunder, as well as any and all laws, regulations and policies that may
apply to the use of CDMS LABEL SEARCH, or any related Web
Services.
7.2 No
Infringement. User shall take no action that
would infringe upon the copyrighted programs or data of CDMS or, in
addition, would infringe upon the Intellectual Property of
CDMS.
7.3 Nondisclosure
of Confidential Information. User shall not disclose to any third
party any confidential information provided to User by CDMS unless
authorized to do so in a writing executed by CDMS. User shall not provide
or otherwise make available CDMS LABEL SEARCH, any related Web Services,
or data incorporated within the services, including, but not limited to
Chemical Information, flow charts, logic diagrams, machine codes, screen
displays or printouts, in any form, to any person or entity, other than
its consultants or contractors who have a need to know such information
and are bound by a written agreement to keep such services or information
confidential, without prior written consent from CDMS. Upon request by
CDMS, User shall provide to CDMS copies of all such
confidentiality/nondisclosure agreements executed by its consultants and
contractors. User shall secure and protect all printed materials, manuals,
software programs, disks, copies, or other media, if any, that embody,
contain, or describe any of CDMS’s confidential information in a manner
consistent with the protection of CDMS’s rights therein and to take
appropriate action by instruction or agreement with its employees to
satisfy its obligations hereunder.
7.4 Intellectual
Property Information. User shall not remove from CDMS LABEL SEARCH, or
from related Web Services or software, any marks, text, graphics, or
symbols that indicate or provide notice of CDMS’s trademark, copyright,
patent, or other rights in CDMS LABEL SEARCH or any related Web Services
or software.
7.5 No
Reverse Engineering. User shall not create, or allow to be created,
any decompilation, disassembly, reverse engineering, or otherwise, any
source code or source program from CDMS LABEL SEARCH or any related Web
Services, or software applications provided or licensed under this
Agreement. User shall not allow CDMS LABEL SEARCH, or any related Web
Services or software applications to be used with any software except
CDMS-approved integration software.
ARTICLE 8. DEFAULT;
INDEMNIFICATION
8.1 Events
of Default. The following shall constitute
events of default of the Agreement by User:
A. User
breaches any covenant or condition of this Agreement;
or
B. User
fails to make any payment required under this Agreement in a timely
manner; or
C. User
uses CDMS LABEL SEARCH Web Service in any manner inconsistent with the
terms of this Agreement, including but not limited to the applicable limit
of one (1) employee per license to which User is
entitled.
8.2 Effect
of Default. Immediately upon the occurrence of any event of default of
this Agreement, CDMS may, in its sole discretion, elect to terminate this
Agreement and to discontinue providing the CDMS LABEL SEARCH service to
User. In the event of User default, all fees and/or charges due and
payable for the remainder of the Term of the Agreement shall immediately
become due and payable.
8.3 Indemnification.
User shall
indemnify and hold harmless CDMS and all of its officers, directors,
employees, and their successors and assigns, from and against any loss or
liability, including attorney’s fees, from any claim or suit by a third
party based upon or arising from User’s (a) violation or breach of any
term of this Agreement or any applicable law, regulation, policy, or
guideline, whether or not referenced herein, or (b) violation of any
rights of any third party, or (c) use, disclosure, or publication of CDMS
LABEL SEARCH Web Services or of any information obtained in whole or in
part by User from or through CDMS LABEL SEARCH.
ARTICLE 9.
ARBITRATION
9.1 Arbitration. USER UNDERSTANDS AND AGREES
THAT ALL CLAIMS, DISPUTES OR CONTROVERSIES BETWEEN USER AND CDMS, ARISING
OUT OF OR RELATED TO THIS AGREEMENT, OR THE BREATH THEREOF, INCLUDING BUT
NOT LIMITED TO TORT AND CONTRACT CLAIMS (INCLUDING THE ENFORCEABILITY OF
THIS AGREEMENT), NEGLIGENCE CLAIMS, CLAIMS BASED UPON ANY FEDERAL, STATE
OR LOCAL STATUTE, LAW, ORDER, ORDINANCE OR REGULATION, AND THE ISSUE OF
ARBITRABILITY, SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION
ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE WITH
ITS COMMERCIAL ARBITRATION RULES IN MARYSVILLE, CALIFORNIA. ANY
CONTROVERSY CONCERNING WHETHER A DISPUTE IS ARBITRABLE SHALL BE DETERMINED
BY THE ARBITRATOR AND NOT BY THE COURT. JUDGMENT UPON ANY AWARD RENDERED
BY THE ARBITRATOR MAY BE ENTERED BY ANY STATE OR FEDERAL COURT HAVING
JURISDICTION THEREOF. THIS ARBITRATION CONTRACT IS MADE PURSUANT TO A
TRANSACTION IN INTERSTATE COMMERCE AND ITS INTERPRETATION, APPLICATION,
ENFORCEMENT, AND PROCEEDINGS HEREUNDER SHALL BE GOVERNED BY THE FEDERAL
ARBITRATION ACT (“FAA”). NEITHER USER NOR CDMS SHALL BE ENTITLED TO JOIN
OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER CONSUMERS OR
ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A
PRIVATE ATTORNEY GENERAL CAPACITY. THE PARTIES VOLUNTARILY AND KNOWINGLY
WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL.
ARTICLE 10. GENERAL
PROVISIONS
10.1 Severability.
If any part
of this Agreement is adjudged by any court of competent jurisdiction to be
invalid or void, that judgment shall not effect or nullify the remainder
of the Agreement and the effect shall be confined to the part immediately
involved in the controversy adjudged.
10.2 Non
Waiver. The failure of either party to exercise in any respect any
right provided for herein shall not be deemed a waiver of any further
right hereunder, nor shall such waiver preclude the further exercise of
that right, unless the same is explicitly waived in writing and signed by
an authorized agent or officer of CDMS.
10.3 Assignment.
User is not allowed to assign this Agreement or any rights hereunder. CDMS
may assign this Agreement or any rights hereunder to an affiliate without
any consent from User.
10.4 Attorney’s
Fees and Costs. In the event of any action at
law or equity, arbitration, or other proceeding to enforce or interpret
the terms or provisions of this Agreement, or arising out of or relating
to this Agreement, the prevailing party shall be entitled to recover
reasonable attorney’s fees and costs incurred.
10.5 Governing
Law. This Agreement shall be governed and construed in accordance with
the laws of the State of
California, without reference to its
choice of law rules.
10.6 Forum.
If the Arbitration provision (Article 9) of this Agreement is adjudged
by any court of competent jurisdiction to be invalid, void, or
unenforceable, any lawsuit, civil action, or other proceeding that is
brought to enforce the terms of this Agreement or that arises out of or
concerns the subject matter of this Agreement shall be brought in the
Superior Court of the County of Yuba, California, or in the United States
District Court for the Eastern District of
California.
10.7 Titles.
The titles to the Articles and paragraphs of this Agreement are solely
for the convenience of the parties, and are not an aid in the
interpretation of the instrument.
10.8 Entire
Agreement and Acknowledgment. The parties acknowledge that this
Agreement has been read and understood and that it represents the entire
Agreement and understanding of the parties relating to the rights granted
and obligations assumed in this instrument and supersedes all prior
agreements, communications, or understandings, whether oral or written.
CDMS reserves the right to modify the terms and conditions of this
Agreement, in its sole discretion and without notice, at any time by
posting the revised terms and conditions on the CDMS Website. User’s
continued use of CDMS LABEL SEARCH Web Service shall constitute User’s
acceptance to be bound by the terms and conditions of this
Agreement.
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